25 Vt. 603 | Vt. | 1853
This is a bill to redeem certain premises in the village of Bellows Falls. The only question of importance in the case, is whether the contract of the third of August, 1839, was what it purports on its face and in its terms to be, a sale of Stephen J. Mellish’s interest in the land, in payment of his previous debt, and money then paid to him by Robertson, with the right of repurchase, in three years, or whether there was still secured to Mellish, a redeemable interest in the premises beyond that.
The testimony of Campbell shows very clearly, that he supposed the writing in its legal effect and indeed any contract, in the power of the parties to make, would leave a right of redemption, in Mellish, and that he so informed the parties at the time. Of course then, Mellish, as he had confidence, in Campbell, as a man learned in the law, to some extent certainly, would naturally conclude such would be his right, in law. But this seems to have been an after thought somewhat, and a result of his legal rights, as viewed by counsel. For Robertson applied to Campbell, to make a writing, giving only the right of repurchase. And from S. J. Mellish saying, that if he did not redeem in three years, he should not redeem at all, it is natural to conclude, that it had been agreed to limit his right in the premises to that term.
In regard to the legal inference, it is no doubt true, Mr. Campbell was mistaken. And, so far as the parties relied upon him, he misled them, in regard to the legal effect of the contract. But it is not, and could not be claimed, that this is a ground of relief, in equity. 1. A mistake of the law, is not ordinarily, a ground of relief, in equity. 2. It does not appear, that this mistake, of the legal effect of the contract, led them to make any different contract, from what they would otherwise have made. Before this, it would seem there had been a debt merely, and a security, by what was, or was equivalent, to a mortgage. At this time, August 3, 1839, an entire new form of contract was adopted. This indicated, very clearly, some different purpose. The form of the writings certainly indicate, very clearly, a purpose of selling the land to Robertson, in payment of his demand, and money then advanced. The former securities are then given up. The grantee takes possession, the price fixed is, according to the preponderance of proof, certainly not far from the fair value, at the time. These
And we see nothing to indicate, in the remotest degree, any fraud or oppression, practised upon Mellish, or that he had, at the time, any just ground to expect that any redeemable interest in the land, was secured to him, beyond the term of three years, unless it was an invincible legal result, and of this, surely he should run; his own hazard.
Some circumstances are relied upon, as showing the transaction to have been intended, as a mere mortgage.
The sixty-five dollars, which Mellish testified was for the future use of the money; the letter of Eobertson in 1841, showing that he had paid Mellish’s order.
The sixty-five dollars, if made up altogether, as Mellish says, does not seem to be a circumstance, at all decisive, in the matter. It was probably fixed upon, as the agreed extra interest, during the three years. But it does not seem necessarily or naturally to point, with any degree of certainty, to a right of redeeming the premises, beyond the term, fixed in the' writing. The payment of the order is perhaps satisfactorily explained, upon the ground, that during the three years, the defendant might naturally have expected, that Mellish would repurchase, according to the writing. There is nothing in the letter showing on what account the order was paid.
The lapse of time, being more than half the term of the statute of limitations upon land, is an important consideration, in determining the right to redeem. From the third day of August, 1839, to the twenty-eighth day of March, 1850, the matter rests, before, any decisive step is taken, by the orator, towards redeeming the premises.
It is true, if the writing be in form a mortgage, or if it have been all along constantly recognized, as such lapse of time, short of fifteen years, is regarded, as unimportant. But when the writing is in form an absolute conveyauce, with a right of repurchase, at a short date, the securities are surrendered, the full price of the land paid, and especially when the grantor lies by, for years, without complaint, or taking any steps towards redemption, and in the mean time, the grantee has, in apparent good faith, disposed of the
The decree of the Chancellor is affirmed.